What Can I Expect in a Lawsuit? Part I: The Pleading Stage
Updated: Apr 2
Whether you have just been sued or you need to file a lawsuit, many litigants are not sure of what to expect. Many assume that once a lawsuit is filed, their ongoing dispute is close to a resolution. While that is sometimes the case, often it is not. Once a complaint is filed (the documents which starts a lawsuit) most courts set the matter on a 12-month case schedule, with a trial being the last event on said schedule. Thus, most matters will not be heard at a trial until a year or more after suit is filed. While this sounds extreme, litigation is a multi-step process that must be appropriately managed at each step.
In this multi-part legal blog post, our commercial litigation lawyer in Columbus, Ohio gives a broad overview of each major step in litigation and what you can expect as a client. The initial pleadings stage will be discussed in this part I.
The Pleading Stage
The first step in a lawsuit always involves the plaintiff filing a complaint with the court. A complaint is a basic statement of the claims the plaintiff is bringing against the defendant. While this sounds simple enough, it is highly recommended that a business litigation attorney in Columbus, Ohio do this on your company’s behalf. First, if the lawsuit is being brought on behalf of a business entity, such as a limited liability company or a corporation, then it is typically required that the business entity be represented by an attorney. Second, the facts alleged in the complaint must meet each element of the claims you are bringing. If one of these elements are not alleged, then you risk having some or all of your claims dismissed.
The defendant can respond to this compliant in one of several ways. A defendant must file a document called an answer in response to the complaint. In addition, if the defendant also has claims against the plaintiff that are related to the claims in the complaint, the defendant must bring those claims at the time of filing the answer in a document called a counterclaim. These are known as compulsory counterclaims; if a defendant does not bring them then they are waived. If the defendant’s claims against plaintiff are unrelated to the claims in the complaint, then the defendant typically has the option to either bring those claims as a counterclaim or file a separate lawsuit. If a counterclaim is filed, the plaintiff must reply to the counterclaim as well.
Rather than file an answer and counterclaim immediately, the defendant can file a motion in response to the complaint, usually asking the court dispose of some or all of the claims in the complaint. This will typically postpone the time when the defendant must file the answer and counterclaim, until the court has resolved the motion. Of course, if the court grants a motion dismissing the complaint in its entirety, then the lawsuit is over, and no answer or counterclaim is required.
Service of Process and Time to File an Answer
If the complaint is filed in an Ohio court, the defendant will have 28 days from the date he or she was actually served with the complaint to respond. If the complaint is filed in federal court, then a party will have 21 days after being served with the complaint to respond or 60 days from the date of being sent a document requesting waiver of service. The vast majority of cases are litigated in state courts rather than federal courts.
In Ohio, the default method of service is certified mail. Unless otherwise requested, the clerk of courts will send the complaint by certified mail to the defendant. Service is deemed complete on the day the defendant signs for the complaint.
Sometimes, personal service is needed rather than certified mail. This usually happens when the last known address for the defendant is incorrect, or the defendant has otherwise evaded the certified mail. While personal process is more expense, it is usually much more efficient. A personal process server typically charges around $85 and will attempt to serve the complaint four times. Once the process server hands the complaint to the defendant, the process server reports to the court that the defendant has been served.
Our Business Litigation Law Firm in Columbus, Ohio Can Guide You Through the Litigation Process
If your company is being sued or if your company needs to file a lawsuit, please contact our firm at your earliest convenience. Whether you are bringing a lawsuit or defending against one, our firm is prepared to be a vigorous advocate on behalf of your company.